Wednesday, March 28, 2007 | City Attorney Mike Aguirre said Tuesday he would not obey the City Council’s decision to limit his ability to file lawsuits because the legislation the council hastily assembled Monday evening violated the state’s open meeting law, an allegation he said he will probe in the coming weeks.
At the same time, questions arose as to whether the City Attorney’s Office itself properly complied with the same open meeting statute.
An expert in government openness laws suggested the city attorney may have acted inappropriately with his decision not to disclose the initiation of one of the cases in the middle of the power struggle between Aguirre and a majority of the City Council.
The legislation passed Monday requires Aguirre to seek the council’s approval of a lawsuit before city funds are used to pursue the case. It was tacked on to the end of a series of mid-year budget tweaks the council endorsed in the waning hours of Monday’s meeting.
The council’s rule is the most recent step in the longstanding feud between council members and the city attorney over the authority for filing lawsuits on the city’s behalf. Although the rule amounts to a demand that the city’s accountants not pay expenses for lawsuits the council doesn’t OK, Aguirre’s shrugging off of the restriction could be a sign that the dispute is headed for court.
“It has absolutely no legal force or effect,” Aguirre said.
He said the rule’s proponents were “misleading and dishonest” to suggest that the restriction was established to better monitor the city’s purse strings.
Aguirre said the City Charter bars the council from curtailing his ability to work independently. Further, he said the council’s vote on his authority was not closely related enough to the budget vote that was scheduled on the meeting’s agenda, and that the vote violated the state law, known as the Brown Act.
In addition to the noticing dispute over the vote, Aguirre said he suspected that five or more council members met privately to draw up the requirement that was ultimately approved. He said that if such coordination, known as a “serial meeting,” occurred, it could result in a misdemeanor against the involved council members.
“It’s clear that this was not spontaneous but was a well orchestrated plan hatched behind closed doors,” Aguirre said.
Council members who supported the restriction said both of Aguirre’s allegations were baseless. Council President Scott Peters acknowledged that he worked with Councilman Ben Hueso to draft a more sweeping version of the proposal than the one the council approved, but said other council members were not involved.
As part of their argument in favor of the new restrictions, council members cited a lawsuit recently filed against developers and approximately 1,500 property owners in Mission Valley as the latest in a series of cases brought by the city attorney without City Council approval.
Aides for the city attorney quickly moved to attack that notion Monday evening and on Tuesday morning provided a closed session report from Dec. 5, 2006 detailing the council’s vote on the matter.
Karen Heumann, assistant city attorney, said the city didn’t officially report the initiation of the litigation to the public until Tuesday morning because it qualified for an exemption under the state’s open meeting law. The exemption allows only limited disclosure of a lawsuit temporarily if full disclosure would interfere with the serving of the suit against its defendants.
However, an attorney for open-government advocate Californians Aware said the exemption still requires governments to disclose the initiation of litigation. The exemption only allows governments to withhold specifics of the litigation with the promise to offer up the information at a later date, attorney Terry Francke said.
“In a case where disclosure or an announcement would allow the adversary to elude the service of process, then the least that’s required is that the council or its spokesperson announce that there was litigation authorized — and that who it was against and why (it was filed) would emerge in due time,” Francke said.
He also doubted whether the city would even have qualified for that exemption to begin with. “I can’t imagine how the service of process exemption would apply in that case. The developers are going to be around, the property owners are going to be around. They are findable, traceable,” Francke said. “To me that seems like a very unlikely risk.”
Heumann said providing broad information about a lawsuit being filed would have been meaningless and illegal. “I could not have reported out if I wanted to,” she said.
The closed session report also lacks a signature approving it. Heumann said it was just a draft, therefore, didn’t include a signature.
The law passed Monday by the City Council is only effective through the end of June, when the current fiscal year ends, but Peters said he expects to propose a more permanent check on Aguirre’s authority next year.
“It’s untenable for this city to have unresolved who makes decisions for the client,” he said.
Aguirre suggested the council proposal was being used as retribution for his legal challenge to pension deals certain council members agreed to in 2002. (Aguirre last week took that lawsuit to the state Supreme Court without the council’s permission.)
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